Arent Fox's transactional ERISA lawyers regularly advise clients on benefit issues related to ERISA and other statutes that regulate Employee Stock Ownership Plans (ESOP's), 401(k) plans, defined benefit pension plans, health and welfare plans (including COBRA and HIPAA), executive deferred compensation programs (Section 409A of the Internal Revenue Code), severance programs and fringe benefit plans. We design and draft all types of employee benefit plans, and advise both for-profit and nonprofit clients on compliance rules.
We also develop practical solutions for fixing broken plans, particularly when a client has been sold an “off-the-shelf” program that does not meet its business objectives, and we have been very successful in negotiating practical solutions with the IRS when employers have discovered operational problems with their benefit plans.
We have significant experience in the Internal Revenue Code, applicable US Department of Labor regulations, and all other laws relating to employee benefits. We regularly handle pension and welfare benefit plan matters on behalf of employers, plan fiduciaries, and sometimes the plans themselves. Arent Fox serves as outside counsel to sponsors of many large and small multi-employer, multiple employer and single-employer plans. We also serve as plan counsel to a number of pension and health plans, some of them governmental plans.
Some representative activities include:
- Advising clients with respect to employee benefit issues in the context of mergers, acquisitions and office or plant relocations, such as plan coverage issues during the transition period following an acquisition and/or plan partial termination issues, and undertaking due diligence with respect to the target entity's benefit programs.
- Attending trustee meetings and providing advice on questions raised by the executive management team, trustees, plan administrators, plan actuaries, plan accountants, investment advisors, and other service providers concerning the administration of the plan.
- Advising clients on strategies for permitting employees to voluntarily retire through the implementation of a subsidized early retirement or “window” program.
- Advising clients on the impact of the “Golden Parachute” rules and compensation deduction limitations in the context of developing executive incentive programs.
- Drafting descriptive materials with respect to the plans of a major trade association, including preparing information periodicals that are regularly sent to members concerning developments in the employer's program and general developments in the law that may affect plan participants.
- Advising clients on the federal and state law requirements related to multiple employer welfare arrangements (MEWAs), the funding of welfare arrangements (including voluntary employees' beneficiary associations or VEBAs), the fiduciary and prohibited transaction implications of receiving income for the endorsement of health insurance programs and, as our clients have moved into programs with more extensive managed care aspects, the structuring of plans and service provider contracts so as to minimize potential sponsor liability.
- Assisting clients with the implementation of nonqualified retirement programs to provide highly compensated employees with a subsidy to make up for the “lost” benefits resulting from the various Internal Revenue Code limitations on the amount of benefits payable under tax-qualified programs, as well as with other executive compensation vehicles subject to the complex rules under Section 409A (including “Rabbi Trusts”).
- Assisting employers with the development of appropriate disclosure and education programs to deal with the challenges of employee-directed investments under Section 401(k) programs and compliance with Section 404(c) of ERISA.
- Assisting clients with requests for proposals and related advice concerning changes in (or conversions involving) third party service providers and investment vehicles.